In a green card case based on a labor certification, there are two possible category options: EB2 and EB3. The difference between these two preference categories impacts the timing of eligibility for filing an application to adjust status (I-485), one’s eligibility for approval of the I-485, and the resulting grant of permanent residence.

Preference Classification Determined by USCIS at I-140 Stage

The first stage is the filing of the PERM labor certification (PERM LC). This application is filed with the U.S. Department of Labor (DOL). The contents of the PERM LC determine the appropriate EB category. However, the selection and assignment of a preference classification occurs during the second stage, which is the I-140 immigrant petition. The I-140 is filed with the U.S. Citizenship and Immigration Services (USCIS).

In the PERM LC, the employer states appropriate minimum job requirements in terms of education and experience. The sponsored individual must be able to demonstrate that he/she possesses the required education and experience as of the date the PERM LC is filed. The education and experience requirements dictate the EB category of the case during the I-140 stage. The employer requests the EB category in the I-140 petition, based upon the PERM LC. The USCIS makes the final determination of whether the case fits within the requested category during adjudication of the I-140 petition.

EB2 Requirements and Determination Criteria

The adjudicator determines the I-140’s preference classification, following the legal guidelines for each category. The EB2 classification is for those positions offered to individuals who are members of the professions holding advanced degrees.

EB2 Based on Master’s Degree or Equivalent

There are several possible ways for a sponsored individual to qualify for EB2. Most commonly, it requires a showing that the employer needs an individual with an advanced degree in the position and that the sponsored worker has that degree. The qualifying degree may be an advanced degree (master’s or doctorate) earned in the United States or its foreign equivalent.

EB2 Based on BS Degree Equivalent Plus 5 Year Experience

Alternatively, EB2 qualification includes a position requiring a U.S. bachelor’s degree or its foreign equivalent and five years of progressive (i.e. post-baccalaureate) experience. For cases filed on this basis, these requirements must be met in order for the USCIS to assign the EB2 classification to the petition. Thus, if an individual knows the requirements for the position, as stated in the PERM LC, indicating the case category.

EB2 Based on Exceptional Ability

EB2 is also appropriate for those with exceptional ability in the sciences, arts, or business, who will substantially benefit the national economy, cultural or educational interests, or welfare of the United States.

PART II

Having discussed EB-2 Visas in Part I, it is important to note at this time that the primary difference between the EB-5 Visa and the EB-2 and EB-3 Visas is that the EB-5 Visa is based upon the investment of the applicant creating jobs, whereas the EB-2 and EB-3 Visas are based upon the applicant being sponsored to work by a U.S. employer. Differences exist between these three categories, including the qualifications of the applicant and visa availability based on country of chargeability.

EB3 Requirements and Determination Criteria

The EB3 classification incorporates skilled workers and professionals. In addition, EB3 has a subcategory of other workers. Although all three of these types are assigned to the EB3 classification, typically, those filed as EB3 other workers are subject to an even longer wait for their priority dates to become current.

EB3 for Skilled Workers

The skilled workers classification is for individuals with at least two years training or experience not of a temporary or seasonal nature.

EB3 for Professionals

The professionals classification is for individuals who hold at least a U.S. bachelor’s degree, or a foreign equivalent, and who are members of the profession. When the USCIS issues a receipt and approval notice in the EB3 category, it usually contains the notation: “Skilled Worker or Professional, Sec 203(b)(3)(A)(i)” or “(ii).”

EB3 for Other Workers

The other workers classification is for individuals who are capable of performing unskilled labor. The employer petitioning to fill a position in this category typically requires less than two years of training or work experience. The notation on the I-797 usually reads, “Other workers Sec. 203(b)(3)(A)(iii).”

EB Category on I-140 Petition Receipt / Approval Notice

Knowing your EB preference category and the priority date assigned to the I-140 petition is critical to understanding your immigration status. This information is found on the I-140 receipt and approval notices.

Sponsored workers who do not have access to the I-797 (receipt or approval notice) for their I-140s, may be able to obtain these by requesting copies of their A files under the Freedom of Information Act (FOIA). While the I-140 is the employer’s filing, depending upon the situation, a FOIA request may enable you to obtain copies of the I-140 filing and related notices and USCIS correspondence. Once a copy is obtained, the preference classification should be clear for the individual.

Next, we will discuss the EB-5 Visa and its requirements.

PART III

EB-5 Visa Requirements

Foreign investors must meet specific United States Citizenship and Immigration (USCIS) requirements to obtain their permanent residency through the EB-5 visa program. In general, the investor must meet capital investment amount requirements, job creation requirements, and ensure that the business receiving the investment qualifies for the EB-5 program. EB-5 visa applicants, their spouse, and their children under 21 will obtain their permanent residency green card once all requirements have been successfully met and approved by the USCIS.

Required EB-5 Investment Amount

Notwithstanding pending proposed regulations, EB-5 visa applicants are typically required to make either a $500,000 or $1 million capital investment amount into a U.S. commercial enterprise.

The minimum amount of capital required for the EB-5 visa program may be decreased from $1 million to $500,000 if the investment is made in a commercial entity that is located in a targeted employment area (TEA). The EB-5 project must either be in a rural area or in an area that has high unemployment in order to qualify for TEA designation.

High unemployment areas are geographic locations with an unemployment rate that is at least 150 percent of the national unemployment rate at the time of the EB-5 investment. Rural areas are geographic regions that are outside of a city with a population of 20,000 or more. Rural areas can also be geographic regions that are outside of what the U.S. Office of Management and Budget has designated as metropolitan statistical areas.

EB-5 Job Creation Requirements

The USCIS requires that EB-5 investments result in the creation of 10 full-time jobs for U.S. workers. These jobs must be created within the two-year period after the investor has received their conditional permanent residency. In some cases, the investor must be able to prove that their investment led to the creation of direct jobs for employees who work directly within the commercial entity that received the investment. However, the EB-5 investor may only have to show that 10 full-time indirect or induced jobs were created if the investment was made in a regional center. Indirect jobs are those created in businesses that supply goods or services to the EB-5 project. Induced jobs are jobs created within the greater community as a result of income being spent by EB-5 project employees.

EB-5 Business Entities

There are several types of business entities in which an EB-5 visa applicant can invest. In general, the applicants can invest directly in a new commercial enterprise or in a regional center. New commercial enterprises are lawful for-profit entities that can take one of many different business structures. So do your due diligence before you proceed to invest in any proposed business structure.